Authorities have used a public safety exception to delay reading Boston Marathon suspect Dzhokhar Tsarnaev his Miranda rights to remain silent and to have an attorney present, a move that has sparked controversy. The Obama administration has been criticized in the past for rolling back Miranda rights after unilaterally expanding the public safety exception in 2010. A group of Republican lawmakers have also called for Tsarnaev to be held as an enemy combatant, but the Obama administration has signaled its intention to try him in civilian court. Constitutional lawyer and Guardian columnist Glenn Greenwald joins us to discuss the legal issues surrounding the case. “It’s sort of odd that the debate is Lindsey Graham’s extremist theory [to hold Tsarnaev as an enemy combatant] or rushing to give President Obama credit for what ought to be just reflexive, which is, if you arrest a U.S. citizen on U.S. soil of a crime, before you imprison him, you actually charge him with a crime and give him the right to a lawyer,” Greenwald says. “The fact those are the two sort of extremes being debated, I think, is illustrative of where we’ve come.”

TRANSCRIPT

Amy Goodman: The Justice Department is expected to bring charges as early as today against 19-year-old Dzhokhar Tsarnaev, who’s accused with his deceased older brother of the Boston Marathon bombings that killed three people and injured more than 170. An FBI high-value detainee interrogation team is now in Boston to question the suspect, who remains hospitalized in Boston in critical but stable condition. There are conflicting reports about whether the college student has already begun responding to questions from interrogators and to what extent he’s even capable of speaking, given his injuries. Authorities say they plan to use a public safety exception to delay reading Tsarnaev his Miranda rights to remain silent and to have an attorney present.

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The decision to question the Boston Marathon bombing suspect without an attorney present has been criticized by some legal groups. In a statement, the Center for Constitutional Rights said, quote, “However horrific the crime, continuing to erode constitutional rights invites continued abuse by law enforcement, and walks us down a dangerous path that becomes nearly impossible to reverse.”

The Obama administration has been criticized in the past for rolling back Miranda rights. In 2010, the Justice Department unilaterally expanded the public safety exception to Miranda. An FBI memo from October 2010 said the “magnitude and complexity” of a terrorist threat justified, quote, “a significantly more extensive public safety interrogation without Miranda warnings than would be permissible in an ordinary criminal case.”

The Obama administration is also being criticzed by some Republicans for planning to file criminal charges against Dzhokhar Tsarnaev. Republican Senators John McCain, Lindsey Graham and Kelly Ayotte, as well as Congressmember Peter King, issued a joint statement saying the government should instead hold the teenager as an enemy combatant.

To talk more about these legal issues surrounding the Boston Marathon bombings, we’re joined by constitutional lawyer and Guardian columnist Glenn Greenwald.

Glenn, welcome to Democracy Now! Can you talk about the legal aspects around this case right now?

Glenn Greenwald: The issues are framed by this overarching question that really has driven all of these questions since the September 11th attack, which is: Are we going to dismantle our traditional legal protocols and constitutional protections in the name of fear, and in particular under the banner of one word, which is “terrorism”? And all of the controversies brewing over this case are essentially a byproduct of that overarching question.

And so, the most—the principal question right now is whether the suspect in custody in the hospital will be given the traditional protections that people are given whenever they’re questioned. The one that’s gotten the most attention is whether he will be read his Miranda rights, be advised that he has the right to remain silent, the right to counsel, which the Supreme Court has said is necessary to safeguard the Fifth Amendment right against self-incrimination. As you just indicated, the Obama administration in 2011, without much attention, significantly expanded a recognized exception to the Miranda right, which is called the public safety exception, where the conservative judges of the court in 1984 basically said if you have very narrow and quick questions to ask a suspect once you arrest him designed to safeguard the public, such as, “Is there a bomb set to go off? Is there a gun that you’ve hidden? Is there an accomplice on the loose?” you can ask those questions before Mirandizing them. And what the Obama administration did is significantly expand this exception in 2011 in terrorism cases to say that we’re not confined just to public safety, we can ask a whole variety of other questions relating to intelligence and other matters without Mirandizing the suspect.

But the more important legal issue is the question of presentment, which is, once you arrest a person, traditionally you are required—the government is required, under constitutional law and statute, to bring the person to a court, to a magistrate, as quickly as possible, as reasonably as quickly as possible, so that the person can be advised of his or her rights and a determination can be made whether there’s probable cause to have arrested the person. And that’s what really safeguards the rights is having the court involved in the process. The Obama administration in 2011 also said that they intend to seek legislation to give them the power to delay that significantly in terrorism cases. They never got the legislation, but instead they—they have been gradually giving themselves the power to delay taking suspects to court. Of course, in this case, it’s not yet an issue because of the suspect’s medical condition. But that’s really the question, is: Will he be treated like every other criminal suspect and taken as promptly as possible to a court so that a court can monitor and safeguard his rights?

Amy Goodman: Can information taken before Miranda rights are read be—would it be acceptable in court?

Glenn Greenwald: Well, under the Miranda rulings of the court, in general, statements that are made before Miranda rights are given are inadmissible. The court did recognize this public safety exception in 1984 that said that if you’re asking the person very narrow questions designed to safeguard the public interest, the public safety, before you Mirandize him, then statements that you obtain can be admissible.

Now, people are pointing out that in this case Miranda really isn’t that important, because statements that the suspect makes are unlikely to be necessary to convict him, given what appear to be all the other evidence that they have. I’m not really so sure that’s true. We certainly have seen some of the evidence, but there’s lots of questions about the guilt, particularly of the younger brother, certainly about his motive. It’s far from a clear-cut case that he’s guilty of anything, let alone the very serious charges that they’re talking about. So I think people are being a little bit dismissive of that question.

But the bigger issue is that the Miranda rights and the issue of presentment are really designed to prevent coercive interrogations, to prevent people from being pressured and manipulated. You have the high-value team already standing outside the hospital room, if not already questioning him, people trained in highly aggressive interrogation tactics. That’s really the issue, is: Do we want the government to be able to question people, extract statements, extract confessions, make threats, in the dark without any lawyers present, without courts monitoring what is being done? And I think the answer ought to clearly be no, that whether it’s terrorism or any other crime, we ought to safeguard rights as well as public safety.

Sen. Lindsey Graham: If you read him his Miranda rights—and the public safety exception is an exception to Miranda that’s really not a terrorist-generated doctrine, it’s in criminal law, and it has a clock that begins to tick. You might get to hold a guy without Miranda warnings under the public safety exception for two or three days, maybe four—who knows? Under the law of war, when you interrogate an enemy combatant about potential military threats or national security threats, there is no plot. So, what I want to do is make sure we use both legal systems, because as the FBI, the CIA and others put together the puzzle about who these guys were and where they went, I want them to have continued access to gather intelligence. It may be a month down the road when we find out something, so I want us to be allowed to go interview him for intelligence-gathering purposes, as long as the investigation goes on without a lawyer present. And the way you do that is you declare him a potential enemy combatant. He will have a day in federal court before a judge to see if the government can hold him under that theory. There will be a habeas hearing, whether or not the government can hold him as an enemy combatant, but that comes down the road, too. So, the way you find out about what this guy may have done and who he knows is you investigate the case, trying to pursue intelligence gathering. I’m not worried about convicting him in court. Even I can convict this guy. I am worried about gathering intelligence.

Amy Goodman: That’s Republican Senator Lindsey Graham. He was joined by the Republican Senator John McCain of Arizona, Senator Ayotte of New Hampshire and Congressmember Peter King of New York, who applauded the decision not to read the suspect his Miranda rights and expressed concern that investigators may still do so. Your response, Glenn Greenwald?

Glenn Greenwald: Well, most legal experts across the spectrum are dismissing that view of Lindsey Graham and McCain and Peter King as not even serious. And that’s the right response, though I do think that it really kind of underscores several important points. For one thing, as radical as that view is being mocked as being, the United States government already has arrested a U.S. citizen on U.S. soil on terrorism charges and then proceeded to imprison him under that theory, that he’s an enemy combatant, and deny him not only the right to a lawyer, but any contact with the outside world or charges of any kind. His name was José Padilla, who was arrested in 2002 and then held for three-and-a-half years under exactly that theory, and there was very little backlash.

But I think the broader point raised by this debate—and it’s sort of odd that the debate is Lindsey Graham’s extremist theory or rushing to give President Obama credit for what ought to be just reflexive, which is, if you arrest a U.S. citizen on U.S. soil of a crime, before you imprison him, you actually charge him with a crime and give him the right to a lawyer—the fact that those are the two sort of extremes being debated, I think, is illustrative of where we’ve come.

But even the question about whether or not this is terrorism, I think, is a terribly important question. The assumption seems to be that this is terrorism. Everybody is running around calling these two brothers terrorists. Aside from the fact that it assumes their guilt, which we shouldn’t be doing, we know almost nothing about what it is that motivated them to go and do what they did. You know, when non-Muslims commit horrific crimes, whether it’s shooting far more people and killing them in Aurora in a movie theater or elementary school children in Sandy Hook or eight people in Tucson, Arizona, where Gabrielle Giffords was shot, quickly, soon as we find out they’re not Muslim, the idea is: Well, this isn’t terrorism; this is just people snapping, becoming mentally ill. The only thing that we really know about these two brothers, in terms of what might have motivated them, is that they identify as Muslim. And at least the older brother seems to have been associated with Islam, although the younger brother doesn’t really seem to have. And yet there’s this assumption—and that’s the whole debate—is that this is nonetheless an act of terrorism. There’s no indication that they have any association of any kind with designated terrorist organizations, any contact with those organizations, no indication that radical political or religious beliefs in any way motivated them to do what they did. It’s possible that that’s the case, but it’s possible it didn’t. And yet, the rush to declare this terrorism, I think, reflects the reality that all terrorism really means—politically, culturally and even legally—is it’s a special category of crime committed by Muslims that result in a whole deprivation of all kinds of rights and protections that is reflected in the current debate. And that is what I think is the most dangerous and enduring aspect of this entire last week, is the continued bolstering of the idea that terrorism is essentially nothing more than crimes committed by Muslims.

Amy Goodman: Glenn, I wanted to turn to former CIA Deputy Director Philip Mudd. On Sunday, he told Fox News Boston bombing suspect Dzhokhar Tsarnaev should be charged as a murderer, not a terrorist.

Philip Mudd: What I fear, though, is that people too quickly are going to categorize this as terrorism. This looks more to me like Columbine than it does like al-Qaeda: two kids who radicalize between themselves in a closed circle and go out and commit murder. I would charge these guys as murderers, not terrorists.

Amy Goodman: That’s your point. That is the former CIA Deputy Director Philip Mudd. He also said he should be Mirandized and that helps get information, he said.

Glenn Greenwald: Right. I mean, I think one of—one of the really important things to note about this last week is I think we haven’t really appreciated the whole significance of what this last week will entail for our political culture and sort of how we think about these issues. I happened to be traveling in the U.S. this last week throughout the U.S., and everywhere I went, in hotels and airports and restaurants, people were completely glued to this—the television for the entire week, people who are often politically apathetic. There are very few political events where everyone in the United States pays attention politically, and these are the events that really shape how they think about their relationship to the government, what to expect from the government.

And the images that were sent and the messages that were broadcast over and over and over again were that Muslims were a unique threat, that we ought to be not just tolerant, but grateful, when the U.S. military and police and other authorities fill our streets, shut down our major cities, ride through and go house to house without search warrants, forcing people to come out of their homes and searching their homes—all sorts of application of very extreme sort of police and military tactics, all in the name of Islamic terrorism. And the idea that we should just rush to call this terrorism, that we should essentially assume their guilt, that we should suspend normal legal process, that we should treat it differently, is all very much the core of what has driven the radicalism and extremism of the United States government over the last decade. And I really believe that this incident will sort of normalize behavior that we should all be very wary of, even in the most extreme conditions, let alone an incident that, although horrific and heinous, in terms of the death count, in terms of what it actually is, really ought to be viewed as a crime.

Amy Goodman: Glenn, very quickly, are you saying that with suspects on the loose with explosives, the authorities shouldn’t have shut down the city?

Glenn Greenwald: I’m not going to criticize the police for doing that, because they may have thought or known that certain things that we don’t know. I think it’s a reasonable debate to have. All I’m really saying is, is that we ought to be very wary any time there are extremist measures like this and be very critically scrutinizing of them and not simply unquestioning of them and sort of reverently cheering for what the police did. It’s an extreme act that ought to be accepted only in the most extreme circumstances.

Amy Goodman: Glenn Greenwald, we want to thank you very much for being with us, columnist and blogger for The Guardian, author of With Liberty and Justice for Some: How the Law Is Used to Destroy Equality and Protect the Powerful. This is Democracy Now! We’ll be back in a minute.

Amy Goodman is the host and executive producer of Democracy Now!, a national, daily, independent, award-winning news program airing on more than 1,100 public television and radio stations worldwide. Time Magazine named Democracy Now! its “Pick of the Podcasts,” along with NBC’s “Meet the Press.”

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